England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		30 June 2003

1. MR JUSTICE LEVESON: On 8 April 2002 at the Telford Magistrates' Court, District Judge Philip Browning dismissed two informations brought at the behest of Nayman John Phillip Dunderdale on behalf of the Royal Society for the Prevention of Cruelty to Animals against Norman Ronald Shinton arising out of the use of a Larsen trap to catch magpies at his home in Telford, Shropshire. The informations alleged, first, that between 5 July 2000 and 10 July 2000 Mr Shinton unlawfully confined a magpie, in a cage which was not sufficient in height, length or breadth to permit the said bird to stretch its wings freely contrary to section 8(1) of the Wildlife and Countryside Act 1981.
2. Secondly, it was alleged that between the same dates Mr Shinton caused unnecessary suffering to an animal, namely a magpie-type bird, by unreasonably confining the animal contrary to section (1)(1)(a) of the Protection of Animals Act 1911. These informations were both dismissed.
3. At the behest of the Royal Society for the Prevention of Cruelty to Animals, questions have been posed for the opinion of this court in these terms --

(a) Must the use of a Larsen trap be shown in fact to promote the conservation of wild birds (inter alia) or is it sufficient for the respondent to show that the trap was used for that purpose and that he honestly and reasonably believed that it would promote such conservation?

(b) Can an offence of unnecessary suffering to the decoy bird (either per se or by reason of not 'rotating' the decoy bird) be made out notwithstanding that the Larsen trap has been used in accordance with the terms and conditions of the licence?

(c) Was I right to acquit the respondent of the offence under section 8(1) of the Wildlife and Countryside Act 1981?

(d) Was I right to acquit the respondent of the offence under section (1)(1)(a) of the Protection of Animals Act 1911?

4. Mr Shinton has not been represented or taken any part in this appeal.

The Facts

5. For a period of time up to 11 July 2000, the respondent, Mr Shinton, used in the garden of his home, 5 Mendip Close, Little Dawley, Telford, a Larsen trap to catch magpies. That trap was constructed of wood and wire mesh and had a closed compartment for confining a live decoy bird and two spring-activated top-entry trap doors. The trap had been acquired by Mr Shinton for the purpose of catching magpies to protect the songbirds in his garden. A live magpie was confined in the trap as a decoy and the same magpie was used throughout its use. The stated case goes on to recite and accept that Mr Shinton's purpose in using the trap was to protect the songbirds in his garden from the predatory activities of magpies.
6. On 10 July 2000, Inspector Dunderdale visited Mr Shinton's home. In the presence of Mr Shinton's wife, he saw the Larsen trap in use and he took the view that its use was unlawful. He saw blood on the perch in the compartment where the decoy magpie was confined. He was unable to get the bird out as it appeared distressed. The following day a warrant was obtained and a third visit made that evening when the trap and the bird were seized. A subsequent examination of the bird by a veterinary surgeon established that its plumage was dirty and covered with dirty, greasy film. On both wings the primary flight feathers had broken shafts and 90 per cent of the feathering and feather vanes were disrupted. On the right foot the outer toe nail (claw) was broken and the middle toe nail was broken. The missing claw was described by the veterinary surgeon as an old injury and there was no evidence to link that with the blood on the perch seen by Mr Dunderdale. Suffice to say, the general poor condition of the bird was consistent with its confinement over a period of weeks in the Larsen trap. These facts gave rise to the two informations.
7. Mr Shinton's defence proceeded on the basis, firstly, that his use of the Larsen trap was covered by a licence statutorily available under the Wildlife and Countryside Act 1981, and that his continued use of the sole magpie as a decoy was intended to cause less suffering to the general population of magpies in that if the original decoy had been dispatched or killed before its condition had deteriorated to that which was found by the inspector, other decoys would have been used, each one of which would itself then have suffered.

The Law

8. Section 8(1) of the Wildlife and Countryside Act 1981 provides --

"If a person keeps or confines any bird whatever in any cage or other receptacle which is not sufficient in height, length or breadth to permit the bird to stretch its wings freely, he shall be guilty of an offence . . . "

9. The clear terms of that sub-section must be read subject to other provisions in the Act which identify circumstances in which it does not apply. One such provision is section 16 of the Act, part of which provides at sub-section (1) --

"Sections 1, 5, 6(3), 7 and 8 . . . do not apply to anything done . . . (c) for the purpose of conserving wild birds . . . if it is done under and in accordance with the terms of a licence granted by the appropriate authority."

10. The appropriate authority is the Secretary of State for the Environment, Transport and the Regions. On 12 January 2000, a general licence was issued in these terms.

"The Secretary of State for the Environment, Transport and the Regions, in exercise of the powers conferred on him by section 16(1)(c), (d) and (k) of the Wildlife and Countryside Act 1981 ("the Act") and after consultation with the Nature Conservancy Council for England and being satisfied that as regards the purpose set out at paragraph 2 that there is no other satisfactory solution, hereby grants the following licence.

Purpose

1. The purposes of this licence are for conserving wild birds, protecting any collection of wild birds and preventing serious damage to livestock, foodstuffs for livestock, crops, vegetables, fruit, growing timber or fisheries.

2. Subject to the terms and conditions below, this licence permits any authorised person to keep or confine any bird listed in paragraph 3 of this licence in a Larsen cage-trap, the dimensions of which do not satisfy the requirements of section 8(1) of the Act.

Terms and conditions

3. No bird other than a species included in the following list may be kept or confined in a Larsen cage-trap as a decoy . . ."

I interpose to identify that one of the birds so specified is the magpie. I return to the terms of the licence.

"4. Any bird not listed above which may become confined in the cage-trap must be released immediately on being found.

5. Each Larsen cage-trap which contains a decoy or a live bird must be inspected on at least one occasion in any 24-hour period. Where Larsen cage-traps are left in the open but not in use, they must be rendered incapable of holding or catching birds.

6. The decoy bird must be provided with adequate food, water, shelter and a perch for the entire period during which it is used. The decoy bird must be removed when the trap is not in use.

7. This licence applies to England and is valid, unless previously revoked, from the period 12 January 2000 to 31 December 2001."

11. I need only add that an authorised person includes the owner or occupier or any person authorised by the owner or occupier of the land on which the action authorised is taken. In this case, there is no doubt that Mr Shinton erected the Larsen cage-trap on his own land, and, therefore, prima facie falls within the terms of the licence provided, of course, that the purposes for which he was using the licence was to conserve wild birds. I repeat from the facts which I have previously recited, that the district judge found as a fact that Mr Shinton's purpose in using the trap was indeed to protect the songbirds in his garden from the predatory activities of magpies.
12. I now pass to section 1 of the Protection of Animals Act 1911 -- the relevant part of which provides at sub-section 1:

"If any person --

(a) shall . . . cause any unnecessary suffering . . . to any animal . . . such person shall be guilty of an offence of cruelty within the meaning of this act."

Analysis

13. In the light of the finding of fact to which I have referred, there is no doubt that Mr Shinton's use of the Larsen trap falls within the terms of the licence. The question first posed by the district judge is aimed at an issue which was ventilated in the lower court but which is not reflected in the evidence stated in the case to the effect that the size of Mr Shinton's garden was such that it was simply impossible for the use of the Larsen trap in fact to promote the conservation of any wild bird. The question presupposes a finding to that effect because based upon the facts as found, it simply does not arise.
14. Furthermore, as Mr Taylor accepted in argument, occupiers of land such as Mr Shinton will only be able to prove that the use of a trap has in fact conserved wild birds after the trap has been on his land for some time. It appears to me that it would put too great a burden upon occupiers in these circumstances to obtain expert evidence in advance of undertaking this type of activity to demonstrate that the use of a trap will successfully conserve wild birds.
15. In my judgment, it is likely to be sufficient if the occupier of land demonstrates that the use of a trap of this type is for the purpose identified in the licence, although I leave open for subsequent decision whether evidence that a trap of this type could have no such effect would be sufficient to take the use of the trap outside the terms of the licence unless, in addition, it could also be demonstrated that the occupier appreciated that the trap could have no such effect. Given the finding of facts in this case, Mr Taylor accepts that there is no basis upon which this question falls for decision and he does not invite me to answer it. It follows that, in the light of the evidence set out in the case stated, the district judge was right to acquit Mr Shinton of an offence under section 8(1) of the Wildlife and Countryside Act 1981.
16. I turn now to the Protection of Animals Act 1911. Before the district judge it was contended that the decoy bird was caused distress and suffering by its confinement and that this suffering was unnecessary because good practice would suggest rotating the decoy bird by replacing it with each newly trapped bird where upon the original decoy bird would be dispatched (i.e. killed). The practice here adopted was to kill each newly trapped bird as and when it was trapped. Mr Shinton contended that it was not shown that continued suffering by one bird used as a decoy was necessarily any more harmful than suffering caused to a series of birds rotated as decoys. The district judge took the view that it would be irrational to say that any suffering caused to the decoy bird was unnecessary given that the use of the trap was lawful. In any event, he went on to observe that he did not consider that there would be any reduction in overall stress and suffering by rotating the decoy bird.
17. Mr Taylor argues that the confined magpie had sustained substantial injury and undoubtedly had suffered. He went on to submit that it was illogical that an owner of a Larsen trap in these circumstances was absolved of responsibilities because a different Act, namely the Wildlife and Countryside Act, provides that keeping a bird in a Larsen trap was lawful. He points to the decision in Barnard v Evans (1925) 2 KB 794, to the effect that causing unnecessary suffering means doing something which it is not reasonably necessary to do and which is not justified. In the context of the decoy bird, it was not necessary to keep the bird in the trap and it was not justified so to do given the extent of its injury. Given that the recently caught birds were to be dispatched in any event, it seems to me moot and unnecessary for decision whether the combined suffering of a group of birds would be greater than the suffering of the individual bird. Whether or not that is so is, in my judgment, irrelevant. Section 1 of the 1911 Act focuses on the specific animal which it is said has suffered unnecessarily.
18. Having regard to the evidence of the veterinary surgeon, accepted and found as a fact to be true by the district judge, in my judgment it is quite impossible to say that this bird did not suffer unnecessarily. I do not accept that the fact that the trap was being lawfully used demonstrates that the offence under the 1911 Act cannot be made out. In the circumstances, I asked the question whether an offence of causing unnecessary suffering to the decoy bird can be made out notwithstanding that the Larsen trap has been used in accordance with the terms and conditions of the licence in the affirmative. Furthermore, I answer the question whether the district judge was right to acquit the respondent of the offence under section (1)(1(a) of the Protection of Animals Act 1911 in the negative. Mr Taylor does not invite me to remit the case back to the Magistrates' Court, the appellants being interested in the points of law thrown up by this decision. In the circumstances, I do not do so.
19. MR TAYLOR: I am grateful, my Lord.
20. MR JUSTICE LEVESON: Thank you.